JUDGE ORDERS RETRIAL OF MAN ACCUSED IN CERIALE KILLING

Janan Hanna, Tribune staff writerCHICAGO TRIBUNE

Rejecting defense arguments that a mistrial should not have been declared when a jury failed to reach a verdict after 10 days of deliberation, a Cook County circuit judge Tuesday ordered Jonathan Tolliver retried for the fatal shooting of Chicago Police Officer Michael Ceriale.

Defense attorney Richard Steinken told Judge Dennis Porter that he had no plans to appeal the retrial ruling or to seek a change of venue. Porter set a new trial for April 30.

Tolliver is accused of killing Ceriale outside of Robert Taylor Homes building in the 4100 block of South Federal Street in August 1998. Ceriale and his partner were conducting a stake-out of a gang-run drug operation.

Tolliver was one of four people charged with murder, and he was the first to be tried. Prosecutors have said that Tolliver and the other defendants were providing security for the drug business when they spotted the officers. Prosecutors told jurors in the first case that Tolliver fired the fatal shot.

The jury acquitted Tolliver of drug conspiracy charges and convicted him on one count of drug possession.

However, the jury could not reach a verdict on the two murder counts.

Citing case law established by the U.S. Supreme Court, Porter said Tuesday that he believed he properly declared a mistrial on Feb. 8 after jurors had indicated they were deadlocked, with 11 jurors voting to convict Tolliver and one voting to acquit him.

"It is my considered judgment that they were [divided] 11 to 1," Porter said. "It was clear to me that there was nothing else to be done that would assist them in reaching a verdict. There had been no movement for a number of days. They tried just about everything they could."

Porter said no new information has emerged since his ruling that would make him change his mind.

"They were hopelessly deadlocked," Porter said.

In a motion to bar a retrial, defense attorneys argued that jurors never definitively stated that they were deadlocked before Porter declared a mistrial. As expected, Tolliver's defense team raised a double jeopardy claim, which bars a defendant from being tried twice for the same offense.

"At no point did the jury declare itself to be deadlocked. Its communications were equivocal, indicating that some members of the jury felt they would be able to reach a verdict on all counts if they continued deliberating," Tolliver's lawyers said in court papers.

But Porter said the U.S. Supreme Court has given judges wide latitude on when they can decide a jury is deadlocked and has instructed judges to strike a balance between letting a jury go on too long and cutting them off too quickly.

Jurors in the Tolliver case requested transcripts of testimony from nearly every witness who testified and sent a series of notes to the judge indicating that although they couldn't seem to reach a verdict, they did not want to be a hung jury.

Ultimately, in a note to the judge the jury foreman asked for guidance, saying that one juror had failed to disclose during jury selection that he had a previous arrest, an experience that caused the juror to distrust the police.

Porter repeatedly instructed the jurors to continue deliberating and did not address the question posed by the jury foreman about the lone holdout.

But after the jury sent out a note asking whether they needed to be unanimous on the decision that they were deadlocked, the judge declared a mistrial.

Assistant State's Atty. James McKay said Tuesday that the defense claim that Porter acted improperly "really stretches the imagination."

"It's completely without merit," McKay said.

"There's ample case law that clearly indicates that a defendant can be retried on counts that were not decided on if the mistrial was declared because of a hung jury, which is exactly what we have here.

"To suggest that this jury wasn't genuinely deadlocked is disingenuous."

Porter also rejected a defense motion Tuesday for a new trial on Tolliver's drug possession conviction.